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Supreme Court 29 May 2015

R v Scott (No 6)

[2015] NSWSC 678

Assault & violenceHomicide
CRIMINAL LAW SENTENCE MURDER VERDICT OF GUILTY AT TRIAL FACT FINDING IMPLICIT IN JURY’S VERDICT USE OF A KNIFE

Citation: R v Scott (No 6) [2015] NSWSC 678
Court: Supreme Court of New South Wales
Date: 29 May 2015
Judge(s): Wilson J

Background

The offender was charged with the murder of Riley Dehn, who died on 5 April 2013 following a fatal stabbing in a car park in Cessnock. The incident arose from a late-night confrontation that escalated after the offender arrived to collect his intoxicated partner, who had been ejected from a nearby hotel. An argument between the offender and a member of the deceased's group of friends rapidly intensified, drawing the deceased into a physical altercation.

During the trial, the offender re-arraigned himself and entered a plea of not guilty to murder but guilty to manslaughter on the basis of excessive self-defence. The Crown declined to accept that plea in discharge of the indictment, and the trial continued. On 10 April 2015, the jury returned a verdict of guilty to murder.

This judgment deals with sentencing following that verdict. Wilson J made factual findings consistent with the jury's verdict and proceeded to assess the appropriate penalty.

  • What facts could the sentencing court find, consistently with the jury's guilty verdict, where witness accounts conflicted?
  • Whether the offender's conduct engaged excessive self-defence and how that affected the sentencing assessment of moral culpability.
  • How the standard non-parole period of 20 years for murder should operate as a statutory guidepost in the circumstances.
  • Whether any utilitarian discount for the late guilty plea to manslaughter was warranted.
  • Whether special circumstances existed justifying a departure from the standard non-parole to overall sentence ratio.

Decision

Wilson J applied the principle from R v Isaacs that, following a guilty verdict, the sentencing court must find the facts proven on the evidence consistently with the jury's verdict. Where witness accounts conflicted, her Honour preferred the evidence of the one witness who had not been heavily drinking, finding that witness credible and reliable. The offender's account to police was found to have been fabricated for self-serving purposes and was not accepted except where independently supported.

The court accepted that the jury's verdict was consistent with its having considered and rejected self-defence entirely, or with finding excessive self-defence, meaning the jury accepted some threat existed but found the offender's response was not reasonable in the circumstances. Her Honour proceeded on the basis that the offender may have acted under a genuine but unreasonable belief that force was necessary, which affected his moral culpability somewhat, though it did not diminish the seriousness of taking a life with a knife during a public confrontation.

The court identified a number of aggravating features, including the use of a knife as a weapon and the vulnerability of the victim once the confrontation became physical. The offender's criminal history and the absence of significant mitigating factors (other than youth and some evidence of a troubled background) were also weighed. The court could make no positive finding in relation to prospects for rehabilitation, noting the offender had done little to address his offending conduct historically.

The late plea of guilty to manslaughter was given no utilitarian discount. The plea had been entered after the most significant evidence had already been called, and any practical benefit to the administration of justice was found to be negligible. No special circumstances were identified to justify altering the standard ratio between the non-parole period and the overall term.

Orders Made

  • The offender was convicted of murder.
  • Non-parole period of 18 years, commencing 6 April 2013 and expiring 5 April 2031.
  • Overall term of imprisonment of 24 years, expiring 5 April 2037.
  • The offender is eligible for release to supervised parole on 5 April 2031.

Key Takeaways

  • Following a jury verdict of guilty to murder, the sentencing court must make its own factual findings from the evidence, provided those findings are consistent with the verdict, applying the principle in R v Isaacs (1997) 41 NSWLR 374.
  • A jury verdict of guilty to murder is capable of being consistent with a finding of excessive self-defence, where the jury rejects the reasonableness of the force used even if some threat existed. The sentencing court can proceed on that basis and treat it as a partial (though limited) mitigating factor for moral culpability.
  • Use of a knife as a weapon in the commission of a murder is treated as a distinct aggravating feature in the sentencing exercise.
  • A utilitarian discount for a guilty plea entered very late in proceedings, after most significant evidence has been called, may be assessed as negligible and attract no reduction in sentence.
  • Where the ordinary statutory ratio of non-parole period to head sentence already produces a substantial parole period, a sentencing court may decline to find special circumstances on the basis that the resulting supervisory period is sufficient to meet the offender's needs on release.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 19A (maximum penalty for murder), s 61 (life imprisonment threshold)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing), s 61(1) (life imprisonment), Division 1A of Part 4 Table (standard non-parole period of 20 years for murder)

Cases:
- R v Isaacs (1997) 41 NSWLR 374 (fact-finding at sentence consistent with jury's verdict)